Since the June U.S. Supreme Court ruling legalizing same-sex marriage in all 50 states, some LGBT intended parents who want to create families via surrogacy, egg donation or other forms of assisted reproductive technology have gotten the mistaken idea that being legally married means they no longer need to obtain court orders establishing themselves as legal parents of their child/children born via ART.

In fact, being legally married does nothing to change the judicial system’s perspective toward parentage of children born via ART in most states, whether the intended parents (“IPs”) are a same-sex couple or a straight couple. That’s because, among other things, the law generally presumes that the woman who gives birth to a child—in this case, the surrogate—is the mother, even though she may have no genetic relationship to the child. In order to counteract that legal presumption, it is necessary to obtain a court order or other parentage certification stating that the intended parents are the child’s legal parents, and that neither the surrogate, nor her spouse if she is married, have any parental relationship to the child. In some states, such as California, it is possible to obtain such a court order prior to birth; in other states and in many other countries, IPs and their attorneys have to wait until after the baby is born before obtaining the court order.

I was recently interviewed for Love Comes First, an organization that uses media to advocate for LGBT family creation, and the result is an informational video that provides an overview of many of the legal issues surrounding assisted reproductive technology, including the court order establishing parentage.

The court order establishing the parental rights of the IPs is required whether or not they are legally married and whether they are a same-sex or heterosexual couple. In the handful of states where surrogacy is illegal unless the intended parents are married, the legalization of same-sex marriage may change the situation for same-sex IPs: the jury is still out on how those different scenarios will play out, as the first cases have yet to be litigated.

In fact the full impact of the Supreme Court’s historic decision on same-sex marriage has yet to play out. By now everyone knows about Kim Davis, the Kentucky county clerk who chose jail over simply complying with the law of the land, as she swore under oath to do when she took office, refusing to issue marriage licenses to same-sex couples in her jurisdiction on the basis of her fundamentalist Christian beliefs. Although this story out of Kentucky is the most notorious (at present), a handful of officials in other states are also conscientious objectors in denying LGBT couples their right to marry. The Kentucky case will undoubtedly make a martyr of Kim Davis, worsening the already onerous backlash that has seen LGBT people fired or being evicted from their homes when they exercise their newfound right to marry the person they love. In much of the country, LGBT people still have no protection against discrimination in employment or housing, as I wrote earlier (Marriage Equality Won’t Keep You from Getting Fired, Evicted).

Laws change with the stroke of a pen or ballot count; hearts and minds are far more stubborn and difficult to sway. This is true of desegregation, women’s equality, immigration law, and it’s true of assisted reproductive technology. In the U.S. and internationally, people who create families via ART must still battle social stigma and discrimination. The legal system and social mores lag far behind the capabilities of the technology, and intended parents—gay or straight—must navigate extra legal hurdles that traditional families do not face. The law will catch up, in time. Organizations like Family Equality Council and Love Comes First are trying to ensure that hearts and minds do as well.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.